Reed v. Mosely

Whitfield, J., delivered the opinion of the court. The testimony in this case clearly shows that Sidney Mack and Amanda Hunter were ‘ ‘ living together and cohabiting as husband and wife November 22, 1865, at the time of the pas [6] sage of the act of that date (acts 1865, p. 82, ch. á, sec. 3),- and had theretofore so lived from 1860, when a slave marriage was had between them, according to the then custom of the country in that regard, and that four children were born to them in that time, and that they so lived together and cohabited as man and wife certainly till 1867, and probably till after the adoption of the constitution of 1869, section 22, article 12, of which relates to the point here involved. Slaves could not contract marriage, and hence this is a case where a legal impediment existed to prevent marriage, and the election of slaves to marry. The cases of Rundle v. Pegram, 19 Miss., 751, and Floyd v. Calvert, 53 Miss., 37, were both case where, at the time the living together and cohabiting began, the parties could have married, no legal impediment existing, but elected to begin a meretricious union. In such cases it has been properly held that there must be “either some formal and explicit agreement between the parties that they will and do accept the new organic law [or the statute] as establishing thenceforward between them a new relationship, ... or there must be such open and visible change in the conduct and declarations of the parties that an agreement to accept the new law might fairly be inferred.” For neither the act of 1865, nor said section 22 of article 12 of the constitution of 1869, had the purpose or the effect to marry parties against their will. But where a legal impediment did exist to marriage, and the parties therefore could not elect legally to marry, but did, as a fact, attempt marriage, according to the then custom of the country, and did live together and cohabit as husband and wife for years, up to, at the time of, and after the adoption of, the act of 1865 and the constitution of 1869, “subsequent continued cohabitation ” is “of itself a strong circumstance to show an acceptance of the provisions of the act and the constitution, and a desire to assume towards each other a new and lawful relationship.” Such continued living and cohabiting together as husband and wife, after the passage of the act of 1865, or of the constitution, [7] in the case of slaves who had, before the passage of either, so lived and cohabited together, and were so living and cohabiting together at the adoption of either, is sufficient assent under either, to establish the marriage relation between the parties. That plainly was the manifiest purpose of the act and of the constitution, dealing wisely and competently with a most anomalous situation. The testimony here satisfies us that these parties were so living and cohabiting together up to 1867, and probably till after the adoption of the constitution of 1869. The case of Andrews v. Simmons, 68 Miss., 732, decided only that, where one of the parties was dead before the act of 1865 was passed, such party being at the time of her death a slave, neither the said act nor the constitution of 1869 had any application. The decree is reversed and the Mil is dismissed.